Citation Nr: 1032866
Decision Date: 09/01/10 Archive Date: 09/13/10
DOCKET NO. 06-30 508 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether new and material evidence has been received to reopen a
claim for service connection for cerebellar hemangioblastoma,
including as secondary to service-connected vocal cord cancer.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sara Schinnerer, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1970 to January 1974.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) from a March 2006 rating decision of the Department of
Veterans Affairs (VA), Regional Office (RO) in Waco, Texas, that
denied service connection for cerebellar hemangioblastoma.
The Veteran testified at a February 2007 hearing before an RO
decision review officer. A transcript of the proceeding is of
record and has been reviewed.
The Veteran also provided testimony at a March 2009 hearing
before the undersigned Acting Veterans Law Judge. A transcript
of the proceeding is of record and has been reviewed.
Regardless of the determination reached by the RO, the
preliminary question of whether a previously denied claim should
be reopened is a jurisdictional matter that must be addressed
before the Board may consider the underlying claim on its merits.
See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v.
Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Therefore, regardless
of the manner in which the RO characterized the issue, the
initial question before the Board is whether new and material
evidence has been presented.
The issue of entitlement to service connection for cerebellar
hemangioblastoma, including as secondary to service-connected
residuals of squamous cell carcinoma of the right vocal cord, is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. In an unappealed September 2002 rating decision, the RO
denied a claim of entitlement to service connection for a brain
tumor due to herbicide exposure and properly notified the
Veteran.
2. Evidence received since the September 2002 RO decision, when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim for
service connection for cerebellar hemangioblastoma, and it raises
a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The September 2002 rating decision which denied the Veteran's
claim of entitlement to service connection for a brain tumor due
to herbicide exposure is final. 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. § 20.1103 (2009).
2. Some of the evidence received subsequent to the September
2002 rating decision is new and material, and the claim is
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance
Upon receipt of a complete or substantially complete application
for benefits and prior to an initial unfavorable decision on a
claim by an agency of original jurisdiction, VA is required to
notify the appellant of the information and evidence not of
record that is necessary to substantiate the claim. See 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18
Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183
(2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
The notice should also address the rating criteria or effective
date provisions that are pertinent to the appellant's claim.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In a claim to reopen a previously and finally denied claim, VA
must notify a claimant of the evidence and information that is
necessary to reopen the claim and VA must notify the claimant of
the evidence and information that is necessary to establish his
entitlement to the underlying claim for the benefit sought by the
claimant. To satisfy this requirement, VA must look at the bases
for the denial in the prior decision and provide a notice letter
that describes what evidence would be necessary to substantiate
that element or elements required to establish service connection
that were found insufficient in the previous denial. Kent v.
Nicholson, 20 Vet. App. 1 (2006).
As to the application to reopen application to reopen the
previously denied claim, in view of the Board's favorable
disposition of this matter, all notification and development
action needed to fairly adjudicate this appeal has been
accomplished.
New and Material Evidence
In a September 2002 rating decision, the RO denied service
connection for a brain tumor due to herbicide exposure. In that
decision, the RO acknowledged the Veteran's diagnosis of a
hemangioblastoma and surgery for removal, however, noted his
tumor to be an extremely common benign tumor which is not a
condition for which presumptive service connection can be
established. The Veteran did not appeal, and the decision became
final. 38 U.S.C.A. § 7105(c); 38 C.F.R.
§ 20.1103. In September 2005, he submitted a claim to reopen.
Based on the procedural history outlined above, the issue for
consideration is whether new and material evidence has been
received to reopen the claim.
As a general rule, a claim may be reopened and reviewed if "new
and material" evidence is presented or secured with respect to a
claim that is final. 38 U.S.C.A.
§ 5108; 38 C.R.F. § 3.156. "New" evidence is defined as
evidence not previously submitted to agency decision-makers, and
"material" evidence means existing evidence that, by itself or
when considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. New and
material evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial of
the claim sought to be reopened, and must raise a reasonable
possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed. Justus
v. Principi, 3 Vet. App. 510 (1992).
In order for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material. If the
evidence is new, but not material, the inquiry ends and the claim
cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314
(1999). If it is determined that new and material evidence has
been submitted, the claim must be reopened, and VA may then
evaluate the merits of the claim on the basis of all evidence of
record.
The evidence of record at the time of the RO's September 2002
rating decision included the Veteran's DD Form 214, reflecting
service in Vietnam, service treatment records which are negative
for cancer, and post-service medical records reflecting treatment
for vocal cord carcinoma status post biopsy and radiation, and
for cerebellar hemangioblastoma. The record also included the
Veteran's assertions that his cerebellar hemangioblastoma was
caused by herbicide exposure during service in Vietnam.
Additional evidence received since the September 2002 RO decision
includes a report of a March 2007 VA neurological examination, VA
medical records, and internet articles regarding brain tumors.
The Veteran has also presented a new theory of entitlement,
specifically that his cerebellar hemangioblastoma may
alternatively be due to radiation treatment for a vocal cord
carcinoma.
Upon review of the record, the Board finds that some of the
evidence received since the prior final September 2002 rating
decision is new and material. Specifically, in January 2007, the
Veteran submitted literature from the National Cancer Institute,
as well as several other organizations addressing brain tumors in
adults. The studies demonstrate that individuals receiving high-
dose ionizing radiation have an increased risk for developing
brain tumors. The scientific/medical literature was not of
record at the time of the September 2002 rating decision and
suggests that the Veteran's brain tumor may be associated with
his radiation treatment for service-connected residuals of vocal
cord cancer; and thus relates to an unestablished fact necessary
to substantiate the claim. Thus, the claim is reopened. 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156.
ORDER
New and material evidence having been received, the claim for
service connection for cerebellar hemangioblastoma is reopened;
the appeal is granted to this extent only.
REMAND
After a review of the claims file, the Board finds that further
development is required prior to adjudicating the Veteran's claim
for service connection for cerebellar hemangioblastoma, including
as secondary to service-connected residuals of squamous cell
carcinoma of the right vocal cord.
At the outset, the Board notes that the Veteran has a current
diagnosis of cerebellar hemangioblastoma and contends that this
disability is due to herbicide exposure in service, or in the
alternative, is due to radiation treatment for his service-
connected residuals of squamous cell carcinoma of the right vocal
cord.
A disability which is proximately due to or the result of a
service-connected disease or injury shall be service connected.
When service connection is thus established for a secondary
condition, the secondary condition shall be considered a part of
the original condition. 38 C.F.R. § 3.310(a). This includes any
increase in severity of a nonservice-connected disease that is
proximately due to or the result of a service-connected
disability as set forth in 38 C.F.R. § 3.310(b). See also Allen
v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that
38 C.F.R. § 3.310 (pertaining to secondary service connection)
was amended effective October 10, 2006.
The Board notes that the Veteran underwent a VA examination in
March 2007.
The examiner provided an extensive review of the record and the
Veteran's medical history, providing a diagnosis of
hemangioblastoma, ultimately concluding that the radiation
therapy the Veteran underwent for his service-connected laryngeal
cancer is not the proximate cause of his cerebellar
hemangioblastoma. However, the March 2007 VA examiner did not
address the issue of whether the Veteran's cerebellar
hemangioblastoma was aggravated (i.e., permanently worsened) by
his service-connected residuals of squamous cell carcinoma of the
right vocal cord.
As such, the Board finds that the March 2007 examination report
is inadequate, and that a remand is also required to obtain a
clarifying medical opinion as to the relationship, if any,
between the Veteran's service-connected residuals of squamous
cell carcinoma and his cerebellar hemangioblastoma, to include
whether there is any aggravation of a non-service-connected
disability by a service-connected disability. 38 U.S.C.A. §
5103A(d); 38 C.F.R. §§ 3.310, 4.2; Barr v. Nicholson, 21 Vet.
App. 303, 311 (2007); McLendon v. Nicholson, 20 Vet. App. 79
(2006); Lathan v. Brown, 7 Vet. App. 359 (1995). In this regard,
the Board notes that when readjudicating the claim the Veteran
should be provided notice of the amendments to 38 C.F.R. § 3.310.
38 U.S.C.A. § 5103A; Allen, supra.
Ongoing medical records should also be obtained. 38 U.S.C.A. §
5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611
(1992) (VA medical records are in constructive possession of the
agency, and must be obtained if the material could be
determinative of the claim).
Regarding Social Security Administration (SSA) records, in a
February 2003 VA outpatient counseling narrative, a VA
psychologist noted the Veteran's cerebellar tumor and subsequent
April 2002 surgery, indicating that the Veteran is no longer able
to work and is currently receiving SSA disability benefits. It
does not appear that the RO attempted to obtain SSA records
pertaining to the Veteran. As these records may be relevant to
the current appeal, a request should be made to the SSA for any
records pertaining to the Veteran, including any decisions and
any medical evidence relied upon in making those decisions. See
Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992).
Accordingly, the case is REMANDED for the following actions:
1. Provide the Veteran with updated notice
regarding his claim for secondary service
connection, including notice of the current
38 C.F.R. § 3.310. The Veteran and his
representative should be given an opportunity
to respond.
2. The RO/AMC should contact the Veteran in
order to obtain the names and addresses of
all medical care providers who have treated
him for complaints related to his cerebellar
hemangioblastoma. After securing any
necessary releases, obtain any records which
are not duplicates of those in the claims
file, and associate them with the claims
file. Any negative search should be noted in
the record and communicated to the Veteran.
3. The RO/AMC should obtain from the SSA the
records pertinent to the Veteran's claim
and/or award of SSA disability benefits. If
such records are unavailable a notation to
that effect should be made in the claims
file.
4. The RO/AMC should forward the Veteran's
claims folder to the VA physician who
provided the March 2007 medical opinion. (If
that examiner is unavailable, the Veteran's
claims file should be referred to another
appropriate examiner for review and comment.)
The examiner should be asked to provide an
addendum with respect to the following
question:
Is it at least as likely as not (a 50 percent
or higher degree of probability) that the
Veteran's service-connected residuals of
squamous cell carcinoma of the right vocal
cord (to include any treatment for that
carcinoma) aggravated his cerebellar
hemangioblastoma?
The examiner is also advised that aggravation
for legal purposes is defined as a worsening
of the underlying disability beyond its
natural progression versus a temporary flare-
up of symptoms. If aggravation is present,
the clinician should indicate, to the extent
possible, the approximate level of cerebellar
hemangioblastoma present (i.e., a baseline)
before the onset of the aggravation.
A clear rationale for all opinions would be
helpful and a discussion of the facts and
medical principles involved would be of
considerable assistance to the Board.
However, if the requested opinion cannot be
provided without resort to speculation, the
examiner should so state and explain why an
opinion cannot be provided without resort to
speculation.
5. After completion of any other notice or
development indicated by the state of the
record, with consideration of all evidence
added to the record since the most recent
supplemental statement of the case, the RO
must readjudicate the Veteran's claim. If
the claim remains denied, the RO should issue
a supplemental statement of the case that
includes citation to 38 C.F.R. § 3.310 as
well as Allen, supra, as well as the
regulations regarding presumptive service
connection based on herbicide exposure, and
provide the Veteran and his representative
with an opportunity to respond.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
C. L. WASSER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs